For Future of Same-Sex Marriage, Prof. NeJaime Looks Back in Time

Professor Doug NeJaime’s civic engagement and scholarship is driving debate concerning the future of marriage in America, but also rethinking its past.

An professor of Family Law, Law & Sexuality and Ethical Lawyering, NeJaime’s current goals are lofty yet focused. “I’m trying to complicate the standard legal narrative in scholarship that traces the LGBT movement’s push for marriage to 1993 after the Hawaii Supreme Court decision.”

NeJaime takes issue with those who argue that the institution of marriage was unimportant to the movement’s pioneers. “Contrary to the claims of many marriage skeptics today, marriage exerts a strong pull that is exceedingly difficult ­­– if not impossible – to escape.”

The Hawaii case in question, Baehr v. Lewin, was a surprising victory for advocates for same-sex marriage. The Hawaii Supreme Court ruled that the state’s marriage law constituted discrimination based on sex and accordingly needed to be subjected to strict scrutiny by the trial court. In response, Hawaii voters passed a constitutional amendment authorizing the legislature to limit marriage to different-sex couples.

But NeJaime thinks the battle for marriage equality began much earlier than that. “In the 1980s, even though advocates were not arguing for marriage explicitly, they were making claims for non-marital recognition based on the fact that same-sex couples looked like married couples,” he said.

He argues in a forthcoming article, entitled “Before Marriage: The Unexplored History of Nonmarital Recognition and its Impact on Marriage,” that while “marriage” wasn’t a tangible goal until much later, key concepts were already being formed.

“Advocates were beginning at that point to articulate a model of marriage capable of including same-sex couples, which forms the foundation for the model of marriage they’re putting forward today,” NeJaime said, adding that the model is based on “emotional support, financial interdependence, romantic affiliation, and not on procreation and biological, dual-gender child rearing.”

NeJaime uses his scholarship to drive debate not only in the public discourse, but in his scholarship, too. In his 2010 UCLA Law Review article, “Lawyering and Marriage Equality,” co-authored with Scott Cummings, NeJaime argued against the claim that court decisions upholding same-sex couples’ right to marry have harmed the movement. He translates this scholarly research into his classroom teaching.

“I taught Lawrence v. Texas in my Law & Sexuality class and posed the question of whether the court should be getting involved, and whether Justice Kennedy, who authored Lawrence and is now thought to be the deciding vote on these marriage cases, will rule in favor of marriage for same-sex couples,” NeJaime said, referring to the landmark 2003 Supreme Court case that found Texas’s “homosexual conduct” law unconstitutional.

This led NeJaime to discuss even bigger questions about the role of the Supreme Court in society. “Should [Kennedy] rule in favor of marriage for same-sex couples, what does that mean for states that don’t allow it? What does that mean for the movement organized against same-sex couples’ right to marry?”

According to NeJaime’s teaching philosophy, these broad questions inform how students understand the specific doctrinal questions they are contemplating. “Getting students to think about these institutional questions, which they actually don’t think about all that much, is an important thing,” he said.